Will the Supreme Court restore its majesty over sedition law

By Cleofato A Coutinho
06 June 2021 17:02 IST

It appears the Supreme Court of India is playing an active role in trying to assert its legitimacy after its credibility took a hit for over half a decade now. The highest court was also accused of having failed to defend life, liberty and constitutional values during emergency but after emergency, it attempted to redeem its prestige and honour   by a series of Judgments redefining life and liberty. It is believed that however powerful the court is, it finds itself very difficult to standup to a powerful elected government. The present regime is seen as a powerful majoritarian elected executive. Has the virus punctured the bluff, the bluster and the rhetoric of the present regime?

 This government never believed that dissent is the flavour of democracy. The hoisting of Nishan Sahib at the Red fort in Delhi and the dramatic scenes in Delhi over the protesting farmers clashing with police in  the  farm laws movement  saw 6 sedition cases with  Yogendra Yadav, Rajdeep Sardessai and other farm leaders facing sedition FIRs. The anti CAA protestors faced 25 sedition cases and arrests. Hathras gang rape protests brought 22 sedition cases. Ten thousands adivasis struggling against government takeover of their land faced sedition charges. JNU students and   students of TISS have been at the receiving end of sedition law perennially. Even a lady whose 6 years old child participated in a school play against CAA-NRC-NPR faced sedition charge. Disha Ravi arrest e sparked a fresh discussion on the sedition law. In UP those who cried for oxygen and hospital beds were also threatened with sedition until the Supreme Court stepped in.  

There is another law which has seen a spike of cases since the present government came. Fr. Stan Swamy, Anand Teltumbde, Sudha Bhardwaj and many others are in custody for years in the Bhima Koregaon case under the Unlawful Activities prevention Act. In UAPA, the Supreme Court opined in 2019   that “courts cannot go into the question of what is admissible and what isn’t at the stage of granting bail. That can only be done at the stage of trial. So at this stage, whatever material the investigating agency has on you, whether you think eventually that would be used in trial or not, the court will be taking into account absolutely everything”. The only judicial way the courts had been using to grant relief to the UAPA arrestees was completely shut since 2019,

The present regime has been misusing both the sedition and the UAPA to arrest those fighting for the people and raising their voices against the government in an attempt to control the democratic places and crack down on protests leading to a clear authoritarian trend in governance. 

International agencies which rank countries based on democracy, press freedom, liberties have all found our democracy slippery in the last 5 year. As India stand devastated economically with its health infrastructure collapsing, there is some good news. The high courts showed more enterprise and courage and the Supreme Court also has responded with the same alacrity like the post emergency period. The chief justice led bench seem to send a clear signal to the courts  that they have to sift evidence to find out whether there are enough grounds to try the suspected and consider broad probabilities and the total effect of evidence even before those accused go for trial. The apex court cautioned the trial courts to look at brazen attempts to prosecute the innocent. The Supreme Court required the trial courts to look at likelihood of serious prejudice to a right of a citizen (Sanjay Kumar Rai v/s UP). In another interesting case the Chief Justice led bench required the courts to be liberal in grant of anticipatory bail which has a direct effect on life and liberty (Nathu Singh v/s. UP).

Next year we will be entering 75 years of our Independence and now comes some good news that the Supreme Court has found the need to define what is or is not sedition to minimize the misuse of the colonial era provision to punish dissent. In the Vinod Dua case the Supreme Court, it was ruled that  Dua was entitled to protection as per 1962 Kedar Nath case.  The law was introduced to clamp down on dissenting Indian nationalists. In 1897 Bal Gangadhar Tilak faced the trial while in 1922  Mahatma Gandhi faced the trial for sedition. After independence K.M. Munshi managed to convince the framers of the constitution to keep out the sedition law to avoid an erroneous impression but law found its place in 1951 as a restriction on freedom of speech. The Hon’ble Supreme Court in number of judgments may have watered down the import of sedition. The 1962 Kedar Nath Judgement, the court allowed criticism of the government. The 2015 Shreya Singhal Judgement held both advocacy and discussion, howsoever unpopular are at the heart of freedom of speech and expression. For over 7 decades political activists have been unsuccessfully struggling to get rid of the archaic law Though the British which introduce the law here in India in 1870 scrapped it in 2009 on grounds that it is archaic, irrelevant and suppresses freedom of speech, we in India not only use,   but misuse it despite a 2018 consultative paper by the law commission which said that it is time to rethink of repeal the sedition law.

The problem is vague provisions for pre-arrest requirement and compliances, lack of guidance on arrest gave room for abuse of law. The sedition law and the UAPA have been having a chilling effect due to their misuse against activists and media personnel. As the highest court gets an opportunity to restore it’s majesty as a protector of citizens’ rights, there is  also a need to have a re-look at  the unlawful activities prevention act which has incarcerated some  of  foremost public intellectuals and activists of the country.   

Disclaimer: Views expressed above are the author's own.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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